«(Competition – Regulation (EEC) No 4064/89 – Decision declaring a merger compatible with the common market – Petroleum sector – Commitments – Decision refusing approval of transferees – Inadmissibility – Definitive binding act – Infringement of essential procedural requirements – Procedural time-limits for reply – Error of assessment)»

1.. Actions for annulment – Actionable measures – Measures producing binding legal effects – Assessment in the light of the substance of the measure – Merger between two undertakings approved by the Commission on condition that assets be transferred to third parties to be approved by it – Right of candidate transferee to bring an action against the refusal by the Commission to approve him (Art. 230 EC)

2.. Competition – Concentrations between undertakings – Investigation by the Commission – Assessments of an economic nature – Discretion – Judicial review – Limits (Council Regulation No 4064/89, Art. 2)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber) 3 April 2003 (1)

((Competition – Regulation (EEC) No 4064/89 – Decision declaring a merger compatible with the common market – Petroleum sector – Commitments – Decision refusing approval of transferees – Inadmissibility – Definitive binding act – Infringement of essential procedural requirements – Procedural time-limits for reply – Error of assessment))

In Case T-342/00,

applicants,

v

defendant, supported by

intervener,

APPLICATION for the annulment of the Commission decision of 13 September 2000 rejecting TotalFina Elf's proposal concerning approval of the applicants as transferees of six motorway service stations,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of: J.D. Cooke, President, R. García-Valdecasas and P. Lindh, Judges,

Registrar: B. Pastor, Deputy Registrar,

having regard to the written procedure and further to the hearing on 11 April 2002,

gives the following

If the Commission does not pronounce upon the documents in question within five working days from the date of their submission, such documents shall be deemed to be accepted by the Commission.

The parties' arguments

Findings of the Court

First plea in law: breach of point 4 of the commitments

Arguments of the parties

Findings of the Court

Second plea in law: infringement of Articles 3(1)(g) EC and 211 EC and Article 2(1)(a) of Regulation No 4064/89

First ground: application of a condition not provided for in the commitments

─ Arguments of the parties

─ Findings of the Court

Second plea in law: the Commission's erroneous assessment of the applicants' candidacy

─ Arguments of the parties

─ Findings of the Court

On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber)

hereby:

Cooke

García-Valdecasas

Lindh

Delivered in open court in Luxembourg on 3 April 2003.

H. Jung

R. García-Valdecasas

Registrar

President